Newton v. State, 40188

• Decision Date: 12 November 1956
• Docket Number: No. 40188,40188
• Citation: Newton v. State, 229 Miss. 267, 90 So.2d 375 (Miss. 1956)
• Parties: Jack NEWTON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 375

90 So.2d 375

229 Miss. 267

Jack NEWTON v.STATE of Mississippi.

No. 40188.

Supreme Court of Mississippi.

Nov. 12, 1956.

Roberson, Luckett & Roberson, Clarksdale, for appellant.

Joe T. Patterson, Atty. Gen., John H. Price, Jr., Asst. Atty. Gen., for appellee.

HOLMES, Justice.

The appellant was charged by indictment in the Circuit Court of Coahoma County with the crime of armed robbery.His trial resulted in his conviction and he was sentenced to serve a term of eight years in the State penitentiary.He appeals from the judgment of conviction.

The State's case rests wholly upon the testimony of G. C. Conklin, the victim of the alleged robbery, to establish the identity of the appellant as the person who committed the crime charged.The substance of this witness' testimony is as follows:

Conklin lived in a trailer at Hillhouse in Coahoma County.The trailer was parked about six feet from Jackson's Store.On the evening of December 14, 1955, Conklin left Jackson's Store at about 6:20 o'clock and went to his trailer.After entering his trailer, he removed his shoes and put on his slippers and turned on his radio and laid down on his bunk.A short time thereafter, he heard Mr. and Mrs. Jackson leaving their store and very soon thereafter he heard a knock on his door and he heard some one say 'open up, open up'.Thinking it was Mr. Jackson, he went to the door and started to open it when the door, which swings outward, was jerked out of his hand.A man immediately entered with a gun in his left hand, and began to push him back, saying 'back up, bank up.'The man pushed him to the back of the trailer and made him turn around and place his hands upon the back of the trailer.The man then tied a handkerchief over his eyes and tied his hands behind his back, and then went through his pockets, removing his wallet and taking therefrom $227 in cash.The man then forced him to lie down on his bunk with his face to the wall.Conklin testified that while he saw only the one man, there was some one else present who spoke in a disguised voice.Conklin described the gun as a 38-caliber, nickle plated pistol.He testified that the robber was wearing a zipper style jacket which was darker than his trousers, and was wearing a hunter's cap which turned up on the sides and down in the front.He wore a light colored shirt which had a design in it.The robber entered the trailer at about 6:45 p. m. and he and his unknown associate left the trailer about 12 or 14 or 15 minutes later.Conklin heard a car crank up and drive away just after they left the trailer.Conklin reported the matter to the officers and gave them his description of the robber.The officers later showed Conklin two photographs and Conklin identified one of them as a picture of the man who robbed him.The picture so identified was a photograph of the appellant.Conklin had never before seen the robber, and had opportunity to observe him only for from one and a half to two and a half minutes, as the robber pushed him to the back of the trailer and blindfolded him.The trailer was dimly lighted by a wick-type kerosene lantern.Conklin was permitted later to observe the appellant in the county jail.At first he was in doubt as to whether the appellant was the man who robbed him because the robber's haird appeared a little lighter than the appellant's hair.Later, he positively identified the appellant as the man who robbed him and said that he could not be mistaken about the appellant's identification.

The appellant's defense was an alibi.To sustain this defense, he introduced as witnesses his wife, Mrs. Norma Newton, and his brother-in-law, Belmont McClenic, and six others who were wholly unrelated to him and apparently wholly disinterested.One of these witnesses was an employee of Baxter Laboratories, located near Cleveland, Mississippi.Another was a dragline operator.Another was a tractor dealer in Clarksdale.Another was the son of a Judge of the General Sessions Court in Memphis who traveled in Mississippi for the Ford Tractor-Dearborn Motor Credit Corporation.The testimony of all of these witnesses showed that at the time of the alleged robbery the appellant was in Cleveland or in the immediate vicinity of Cleveland.The undisputed evidence shows that traveling from Conklin's trailer in Hillhouse to the center of Cleveland, proceeding by the longer route in an automobile at 70 miles per hour, would require 44 1/2 minutes, and by the shorter route, would require 36 minutes.It is inescapable that if the testimony of these unrelated and wholly disinterested witnesses is true, the appellant could not have been at the scene of the crime at the time it is alleged to have been committed.

The appellant assigns as error the action of the trial court in refusing the following instruction:

'The Court instructs the jury for the defendant, Jack Newton, that it is only necessary that the evidence of the alibi should raise a reasonable doubt in the minds of the jury, and it is not required that the alibi be conclusively established, but on the contrary, the State must prove that the alibi is untrue.'

It will be observed that this instruction placed upon the State the burden of proving that the alibi was untrue.We think this was a greater burden than was required of the State.All that was required of the State was that it's evidence be such as to warrant the jury in believing beyond a reasonable doubt that the appellant was at the scene of the crime and committed the robbery.The State's proof, in chief, was contradictory of the appellant's proof of an alibi, and it was the province of the jury to determine from the evidence as a whole the guilt or innocence of the appellant.Since the State's proof in chief was contradictory of app...